Prado v. Warden, Chillicothe Correctional Institute

Filing 5

OPINION AND ORDER adopting Report and Recommendations re 3 Report and Recommendations. Signed by Judge James L. Graham on 10/16/2017. (ds)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MANUEL B. PRADO,
CASE NO. 2:17-CV-00790
JUDGE JAMES L. GRAHAM
Magistrate Judge Kimberly A. Jolson

Petitioner,
v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
On September 27, 2017, the Magistrate Judge issued a Report and Recommendation
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Courts recommending that this action be dismissed as barred by the one-year statute of
limitations provided for under 28 U.S.C. § 2244(d). (Doc. 3.) Petitioner has filed a Response to
the Magistrate Judge’s Report and Recommendation.

(Doc. 4.)

Petitioner objects to the

Magistrate Judge’s recommendation of dismissal of this action with prejudice. He seeks to
voluntary dismiss the case so that he may return to the state courts and exhaust his claims by
filing a motion for a delayed appeal with the Ohio Supreme Court. See Petitioner’s Response to
Magistrate’s Report and Recommendation (Doc. 4.)
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. Petitioner’s
objection is OVERRULED. His request for a dismissal without prejudice is DENIED. As
discussed by the Magistrate Judge, the record reflects that this action plainly is time-barred.
Therefore, the filing of a motion for a delayed appeal will not assist Petitioner in obtaining
federal habeas corpus relief. Any re-filing of this action likewise will be time-barred.

The Report and Recommendation (Doc. 3) is ADOPTED and AFFIRMED. This action
is hereby DISMISSED.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States
District Courts, the Court now considers whether to issue a certificate of appealability. “In
contrast to an ordinary civil litigant, a state prisoner who seeks a writ of habeas corpus in federal
court holds no automatic right to appeal from an adverse decision by a district court.” Jordan v.
Fisher, -- U.S. --, --, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. 2253(c)(1) (requiring a habeas
petitioner to obtain a certificate of appealability in order to appeal). The petitioner must establish
the substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

This

standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529
U.S. 473, 484 (2000) (recognizing codification of Barefoot in 28 U.S.C. § 2253(c)(2)). To make
a substantial showing of the denial of a constitutional right, a petitioner must show “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S., at 893
n. 4).
Where the Court dismisses a claim on procedural grounds, however, a certificate of
appealability “should issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling.” Id. Thus, there are two components to determining whether a certificate of appealability
should issue when a claim is dismissed on procedural grounds: “one directed at the underlying
constitutional claims and one directed at the district court's procedural holding.” Id. at 485. The

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court may first “resolve the issue whose answer is more apparent from the record and
arguments.” Id.
Upon review of the record, this Court is not persuaded that reasonable jurists could
debate whether Petitioner’s claims should have been resolved differently or that jurists of reason
would find it debatable whether this Court was correct in its procedural rulings. Therefore, the
Court DECLINES to issue a certificate of appealability.
The Clerk is DIRECTED to enter FINAL JUDGMENT.
Date: October 16, 2017

____s/James L. Graham_____
JAMES L. GRAHAM
United States District Judge

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